Succession of Wallace, 90-CC-0159

Citation574 So.2d 348
Decision Date22 January 1991
Docket NumberNo. 90-CC-0159,90-CC-0159
PartiesSUCCESSION OF Charles Wrennon WALLACE. 574 So.2d 348, 59 U.S.L.W. 2525
CourtSupreme Court of Louisiana

Page 348

574 So.2d 348
SUCCESSION OF Charles Wrennon WALLACE.
No. 90-CC-0159.
574 So.2d 348, 59 U.S.L.W. 2525
Supreme Court of Louisiana.
Jan. 22, 1991.

Page 349

Garland R. Rolling, Metairie, for Ruth B. Wallace, applicant.

Jacqueline M. Goldberg in pro. per.

Max Nathan, Jr., New Orleans, for respondent.

DENNIS, Justice. *

An attorney disciplinary rule of this court provides that an attorney representing a client in any matter is required to withdraw from employment if he is discharged by his client. Rules of Professional Conduct, Rule 1.16(a)(3). The state constitutional question presented by this case is whether the legislature by the enactment of La.R.S. 9:2448 may validly supersede or amend this court's attorney disciplinary rule to provide that an executor of an estate may discharge the attorney designated in the testator's will "only for just cause."

The testator, Charles Wrennon Wallace, died March 9, 1981 leaving a statutory will in which he appointed his wife, Ruth Pearl Brink Wallace, executrix of his estate, and Jacqueline Mae Goldberg, attorney to act for the executrix and the estate. Mrs. Wallace filed a petition to probate the will. Subsequently Mrs. Wallace filed a rule to show cause why La.R.S. 9:2448 should not be declared unconstitutional, as being in conflict with this court's rules adopted pursuant to its inherent judicial power, and why she should not be able to discharge the attorney designated in the testator's will and employ an attorney of her choice to assist her in administering the succession. The district court denied the executrix relief and the court of appeal refused to exercise its supervisory jurisdiction. We granted certiorari to decide whether the statute in question is unconstitutional because it conflicts with a valid rule of this court regulating the professional conduct of attorneys and their relationships with their clients and the courts.

Page 350

1. This Court's Responsibility and Power

This court has exclusive and plenary power to define and regulate all facets of the practice of law, including the admission of attorneys to the bar, the professional responsibility and conduct of lawyers, the discipline, suspension and disbarment of lawyers, and the client-attorney relationship. LSBA v. Edwins, 540 So.2d 294 (La.1989); Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 109, 115 (La.1979); LSBA v. Connolly, 201 La. 342, 9 So.2d 582 (1942); Ex Parte Steckler, 179 La. 410, 154 So. 41 (1934); Meunier v. Bernich, 170 So. 567 (La.App.1936). The sources of this power are this court's inherent judicial power emanating from the constitutional separation of powers, La.Const.1974, Art. II; Saucier v. Hayes Dairy Products, Inc., supra; Ex Parte Steckler, supra; Meunier v. Bernich, supra, the traditional inherent and essential function of attorneys as officers of the courts, Ex Parte Steckler, supra; Meunier v. Bernich, supra; and this court's exclusive original jurisdiction of attorney disciplinary proceedings. La. Const.1974, Art. V, Sec. 5(B); Saucier v. Hayes Dairy Products, Inc., supra. The standards governing the conduct of attorneys by rules of this court unquestionably have the force and effect of substantive law. Succession of Cloud, 530 So.2d 1146 (La.1988); Succession of Boyenga, 437 So.2d 260 (La.1983); Leenerts Farm, Inc. v. Rogers, 421 So.2d 216 (La.1982); Singer, Hunter, Levine, Seeman & Stuart v. LSBA 378 So.2d 423, 426 (La.1979); Saucier v. Hayes Dairy Products, Inc., supra; LSBA v. Connolly, supra; Ex Parte Steckler, supra.

Conversely, the legislature cannot enact laws defining or regulating the practice of law in any aspect without this court's approval or acquiescence because that power properly belongs to this court and is reserved for it by the constitutional separation of powers. La. Const.1974, Art. II. Accordingly, a legislative act purporting to regulate the practice of law has commendatory effect only until it is approved by this court as a provision in aid of its inherent judicial power. This court will ratify legislative acts that are useful or necessary to the exercise of its inherent judicial power, but it will strike down statutes which tend to impede or frustrate its authority. Saucier v. Hayes Dairy Products, Inc., supra at 115; Meunier v. Bernich, supra; Ex Parte Steckler, supra at 45; LSBA v. Connolly, supra 9 So.2d at 586; Singer, Hunter, Levine, Seeman & Stuart v. LSBA, supra at 425.

The people's constitutional reposition of power carries with it a mandate for the full and responsible use of that power. See, e.g., American Trial Lawyers v. New Jersey Sup.Ct., 66 N.J. 258, 330 A.2d 350 (1974). Consequently, this court has not only the power but also the responsibility to regulate the practice of law in this state. LSBA v. Dumaine, 550 So.2d 1197, 1200 (La.1989); Saucier v. Hayes Dairy Products, Inc., supra; Succession of Boyenga, supra; LSBA v. Edwins, 329 So.2d 437 (La.1976). Accordingly, this court has not hesitated to meet its judicial responsibility for the use of the inherent judicial power and original attorney disciplinary jurisdiction vested in it by the constitution. 1

Page 351

In defining and regulating the client-attorney relationship this court has adopted a number of interrelated rules as part of the Code of Professional Responsibility. Respecting legal fees the code provides that a lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee. Rules of Professional Conduct, Rule 1.5. A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned. Rules of Professional Conduct, Rule 1.16(d). A lawyer representing a client in any matter is required to withdraw from employment if he is discharged by his client. Rules of Professional Conduct, Rule 1.16(a)(3). Except with consent of his client, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interest. Rules of Professional Conduct, Rule 1.7. A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation he is conducting for a client, except for a lien granted by law to secure his fee or expenses or a reasonable contingent fee contract in a civil case. Rules of Professional Conduct, Rule 1.8(j). A lawyer shall refuse to accept or continue employment if the interests of another client may impair the independent professional judgment of the lawyer. Rules of Professional Conduct, Rule 1.7.

These rules are designed to give the client the right to control and direct the assertion and protection of his legal rights as fully as practicable, and to encourage and require an attorney to act with loyalty and in the best interest of his client. Rule 1.3, Comment ("A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer"); Rule 1.4, Comment ("Even when a client delegates authority to the lawyer, the client should be kept advised of the status of the matter."); Rule 1.7, Comment ("loyalty is an essential element in the lawyer's relationship to a client."); Rule 1.7, Comment ("The lawyer's own interest should not be permitted to have an adverse effect on representation of a client."); Rule 1.8, Comment ("... all transactions between client and lawyer should be fair and reasonable to the client."); Rule 2.1, Comment ("A client is entitled to straightforward advice expressing the lawyer's honest assessment."); Rule 7.3, Comment ("There is potential for abuse inherent in direct solicitation by a lawyer ... [a] prospective client often feels overwhelmed by a situation giving rise to the need of legal services, and may have an impaired capacity for reason, judgment and protective self-interest.").

2. The Rule Of This Court

Rule 1.16(a)(3), the rule defining and regulating the client-attorney relationship most pertinent to the present case, provides unequivocally that "a lawyer ... shall withdraw from the representation of a client if ... the lawyer is discharged." The comment under the Rules of Professional Conduct Rule 1.16, explains that the rule means "[a] client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer's services." (Emphasis added). Moreover, this court has held that "Disciplinary Rule 2-110(B)(4) [the identical predecessor provision to Rule 1.16] recognizes the client's absolute right to discharge his attorney.... Thus an attorney can [not] force his continued representation of a client who wishes to discharge him...." Scott v. Kemper Ins. Co., 377 So.2d 66, 69-70 (La.1979) (Emphasis added); Accord: Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 111, 114, 116 (Calogero, J., On Rehearing) (Dennis, J., dissenting from original opinion).

The rule that a client may discharge his attorney at any time with or without cause was generally accepted as a jurisprudential precept prior to the adoption of either the Code of Professional Responsibility or the Model Rules of Professional Conduct. See Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987); In Re Estate of Deardoff, 10 Ohio St.3d 108, 461 N.E.2d 1292 (1984); Heinzman v. Fine, 217 Va. 958, 234 S.E.2d 282 (1977); Ambrose v. Detroit Edison, 65 Mich.App. 484,

Page 352

237 N.W.2d 520 (1976); People v. Radinsky, 182 Colo. 259, 512 P.2d 627 (1973); Fracasse v. Brent, 6 Cal.3d 784, 100 Cal.Rptr. 385, 494 P.2d 9 (1972); Chancey v. West, 266 Ala. 314, 96 So.2d 457 (1957); Cole v. Meyers, 128 Conn. 223, 21 A.2d 396 (1941); First Nat'l Bank v. Bassett, 183 Okla. 592, 83 P.2d 837; Ramey v. Graves, 112 Wash. 88, 191 P. 801 (1920); Martin v. Camp, 219 N.Y. 170, 114 N.E. 46 (1916); Louque v. Dejan, 129 La. 519, 56 So. 427 (1911); See Saucier v. Hayes Dairy Products, Inc., supra at 111; Kalish,...

To continue reading

Request your trial
56 cases
  • Leclerc v. Webb, Civ.A. 03-664.
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • July 2, 2003
    ... ... Succession of Wallace, 574 So.2d 348, 350 (La. 1991) (citing LSBA v. Edwins, 540 So.2d 294 (La.1989); ... ...
  • Teague v. St. Paul Fire and Marine Ins. Co.
    • United States
    • Court of Appeal of Louisiana — District of US
    • April 7, 2009
    ... ... Citing Succession of Wallace, 574 So.2d 348 (La.1991), the court observed that "[t]he Rules of Professional Conduct ... ...
  • Southern Christian Leadership v. Supreme Court, CIV. A. 99-1205.
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • July 27, 1999
    ... ... the client-attorney relationship.'" Dodson, 951 F.2d at 43 (quoting Succession of Wallace, 574 So.2d 348, 350 (La.1991)). This authority necessarily must encompass appropriate ... ...
  • Willis v. Letulle
    • United States
    • Court of Appeal of Louisiana — District of US
    • March 6, 1992
  • Request a trial to view additional results
1 books & journal articles
  • State courts and the separation of powers: a venerable doctrine in varied contexts.
    • United States
    • Albany Law Review Vol. 61 No. 5, August 1998
    • August 6, 1998
    ...eds., 1982). (104) THE FEDERALIST NO. 78, at 523 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). (105) See, e.g., Succession of Wallace, 574 So. 2d 348, 350 (La. 1991) (stating that "the legislature cannot enact laws defining or regulating the practice of law in any aspect without this cou......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT